COMMONWEALTH v. YESHULAS

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Indictment found and
returned in the Superior Court Department on July 22, 1997.

The case was tried before Patrick
F. Brady, J., and a motion for a new trial was heard by him.

Murray A. Kohn for the
defendant.

Joseph M. Ditkoff,
Assistant District Attorney, for the Commonwealth.

BECK, J.

A Suffolk Superior Court jury convicted the
defendant of aiding in or counseling the burning of a dwelling
house, G. L. c. 266, ? 1, and arson causing injury to a
firefighter, G. L. c. 265, ? 13D?. (She was found not guilty of
breaking and entering with intent to commit a felony.) On appeal,
she claims that the following errors infected her trial: the
prosecutor unfairly introduced the testimony of a victim’s
brother and made improper remarks in her closing argument; the
judge abused his discretion in refusing to conduct a voir dire of
the jury to determine whether they were aware of publicity
involving one of the defendant’s witnesses; and the restitution
proceedings were flawed. We affirm.

1. Facts. There is no dispute that, on
the evening of May 21, 1997, someone set fire to the first floor
apartment at 39 Middle Street in the South Boston area of Boston
where Daniel Duggan and his son Tim lived. The fire alarm went
off at 7:55 P.M.; within three minutes,
firefighters began appearing at the scene. In total, about
thirty-five individuals were involved in fighting the fire. The
fire had burned for twenty to thirty minutes before the
firefighters received and responded to the alarm. It was quickly
extinguished, but one of the firefighters was injured when the
kitchen ceiling collapsed on him.

The issue at trial was whether the defendant
was among those who set the fire. The Commonwealth’s case relied
heavily on the testimony of Cory Faith, a fifteen year old who
admitted that she was among the group of teenagers who set the
fire. In exchange for her testimony and a plea of delinquent to
breaking and entering, the Commonwealth agreed to dismiss the
arson and injury to a firefighter charges against her.

As to the charges of which the defendant was
convicted, Faith supplied the following evidence. The defendant
threw a lighted cigarette into a trash barrel in the hall of the
Duggans’ apartment, pulled a burning T-shirt from the trash
barrel, and then dropped the T-shirt back into the barrel. The
defendant also wrote her name and that of another participant and
the words "was here with porch power" on the Duggans’
porch. As the group left the Duggans’ home, Faith told the other
participants she felt bad for the Duggans. The defendant
responded that she "didn’t care, he [meaning Tim Duggan]
deserved it."

An adult witness testified that, at about 7:45 P.M.,
she heard sirens and saw several young people, who appeared to be
frightened, running away from Middle Street. The defendant, who
was nearly eighteen, was among them. Minutes later the witness
saw the same group at the Andrews "MBTA" station. When
the adult witness asked one of the group why she seemed
frightened, one of the young people, possibly the defendant,
warned the person to whom the question was put, "Don’t say
effing [sic] anything." Another adult witness
testified that she saw a group of teenagers running away from 39
Middle Street, but could not identify any of them.

The defendant claimed alibi. She called a
number of witnesses who testified as to her whereabouts on the
day in question. Defense counsel’s law partner testified that the
defendant was working on the office computer until about 6:15 P.M.
Another witness testified that the defendant was in his apartment
showering between 6:30 and 6:55 P.M. A close friend
testified that the defendant was with her between 6:55 and 7:55 P.M.,
assisting in a search for a pair of shoes to borrow. Lois
Lampron, who was dating the defendant’s father, testified that
the defendant came by her apartment, not far from the scene of
the fire, at about 7:45 P.M., looking for Lampron’s
daughter, who was not home. According to the defendant, she went
to the Andrews MBTA station in response to a telephone call from
one of the participants who set the fire.

2. Prosecutorial excesses. a. Testimony
of Robert Duggan. The prosecution called Daniel Duggan’s
brother Robert. Robert testified that when he arrived at 39
Middle Street, Daniel was sitting on the stairs across from the
house and seemed to be having trouble breathing, apparently from
the smoke. An ambulance took Daniel to the hospital; Robert
picked him up the next day. Robert also testified that Daniel had
lived at 39 Middle Street for ten to fourteen years and that it
was a two-family house.

The defendant claims that this evidence, to
which she did not object at trial, was irrelevant and designed
only to create sympathy for Daniel. There is no merit to this
argument. Family members may testify about relevant issues so
long a such testimony is not elicited solely to create sympathy. Commonwealth
v. Rock, 429 Mass. 609, 615 (1999). As the Commonwealth
points out, the evidence was relevant to establish that 39 Middle
Street was a dwelling, an element of the arson charge. See G. L.
c. 266, ? 1. The testimony also provided a foundation for
the admission of Daniel’s hospital records, which in turn were
relevant to establishing the time the fire was started. See Commonwealth
v. Rock, supra. Moreover, the testimony was
relatively brief and factual and does not appear to us to have
been introduced to evoke sympathy or to have had that effect. Commonwealth
v. Santiago, 425 Mass. 491 (1997), on which the defendant
relies, is not on point. In that case, the testimony of the
deceased victim’s sister concerned issues about the victim’s life
that were not relevant and were particularly damaging because the
victim was not the intended target of the shooting. Id. at
493, 497. There was no error.

b. Closing argument. In her closing
argument, the prosecutor argued to the jury that the defendant
"didn’t care who was inside . . . . She didn’t care who got
hurt. She didn’t care about the destruction." Although there
was no objection at trial, the defendant claims this argument was
also an improper appeal to sympathy. We disagree. The argument
was a reasonable inference from the evidence that the defendant
put the burning T-shirt back in the barrel and said she did not
care about the occupants of the apartment. It was addressed to
the state of mind of the defendant, which was relevant to
establishing that the defendant acted wilfully and maliciously as
the arson statute requires. See Commonwealth v. Martinez,
431 Mass. 168, 182 (2000); G. L. c. 266, ? 1. This was not an
appeal for sympathy; such efforts tend to focus on the injury or
death of the victim. These remarks focused on the defendant. In
any event, this argument did not, as the defendant contends, go
the heart of her defense, i.e., that she was not there.

3. Failure to conduct voir dire.
Evidently sometime after 10:30 A.M. on February 18,
1998 when she completed her testimony for the defense in this
case, Lois Lampron was involved in an eviction proceeding in the
Housing Court, probably in the same courthouse. Lampron and her
family were apparently being evicted from the Old Colony Housing
Project in South Boston where she had lived for twenty-two years.
According to the defendant, Lampron "scream[ed] at the judge
and [made] a big spectacle of herself," conduct the
defendant claims was broadcast on the eleven o’clock news that
night and reported in the Boston Herald newspaper the next
morning. Defense counsel brought this situation to the trial
judge’s attention two hours after the jury had resumed their
deliberations the next morning. Trial counsel expressed his
concern about whether the publicity concerning Lampron’s conduct
at the Housing Court had the effect of impeaching her trial
testimony. Although trial counsel did not explicitly request a
voir dire of the jury, the judge "decline[d] to interview
the jurors." The judge expressed concern that questioning
the jury "might even invoke . . . thoughts that are
unpredictable." The defendant claims that the judge’s
decision was an abuse of discretion and warrants a new trial. SeeCommonwealth v. Federici, 427 Mass. 740, 746
(1998). We disagree.

Although the judge marked the newspaper article
for identification, neither it nor a video tape of the broadcast
has been included in the record. We obtained a copy of the
newspaper article from the Superior Court and have read it. See
Mass.R.A.P. 18(a), as amended, 378 Mass. 940 (1979). Lampron
herself is not presented in an unfavorable light. Moreover, the
article does not include her picture.

The judge accepted defense counsel’s report of
the defendant’s statement that she had seen Lampron on the
newscast yelling at the Housing Court judge. If, despite the
probably fatal absence of a video tape, we assume that Lampron
was recognizable in the broadcast and that she was cast in an
unfavorable light, the defendant’s argument would nonetheless
fail because Lampron’s testimony was not crucial to the
defendant’s case. Her testimony, that she had a conversation with
the defendant in the same neighborhood as the Duggans’ apartment
fifteen minutes after the time the investigators established as
the start of the fire, even if believed, did not establish an
alibi. Moreover, the Housing Court matter bore no substantive
relation to the defendant’s trial. See Commonwealth v. Hanscomb,
367 Mass. 726, 728-729 (1975). These factors alone are sufficient
to establish that the trial judge did not abuse his discretion in
refusing to question the jurors.

Even if Lampon’s testimony had been of
significance to the defense, the judge’s instructions would have
offset any negative effect from the broadcast. The judge clearly
and forcefully instructed the jury that they should avoid any
exposure to publicity. See Commonwealth v. O’Toole,
15 Mass. App. Ct. 927, 928 (1983).

On the first day of trial, before opening
statements, the judge warned the jury that there might be
publicity about the case. He told them, "Your duty is to
avoid [publicity]." He further advised:

"If anything comes to your attention about
the case outside of court your duty is to tell the [court]
officer(s) about it. They can bring it to my attention. We
usually then have a little bit of a private interview with
counsel. You can tell me what the situation involved and I have
to make a decision as to whether it is appropriate for you to
continue as a juror, so avoid it, police yourselves. Do not allow
yourselves to be exposed to any publicity."

At the end of the first day, the judge again
admonished the jury that "if there is an[y] publicity about
the case make sure that you do not allow yourselves to be exposed
to it."

At the end of the second day of trial, the
judge "repeat[ed] the admonitions, . . . [including the
following:] if there is any publicity, make sure you police
yourselves. Don’t allow yourselves to be exposed to it."
Finally, after closing arguments (and before the newscast
coverage that evening), the judge instructed the jury as follows:

"[A]nything that you heard outside of
court having anything remotely to do with the case is not
evidence. Ignore it, it should play no role in your decision and
it would be grossly unfair if any of you were to take into
account something you heard about the case or the general type of
case outside of court in reaching your decision."

The judge was entitled to assume that the jury
followed his instructions. See Commonwealth v. Degro,
432 Mass. 319, 328 (2000). He did not abuse his discretion in
declining to question the jurors.

4. The restitution order. At a hearing
five days after the end of the trial, the judge sentenced the
defendant to a State prison term to be followed by three years of
probation, with "a special condition of probation that [the
defendant] make restitution to Tim and Daniel Duggan in the
amount of $2,500 [with] [t]he terms of repayment to be set by the
probation officer in his or her discretion." The judge
arrived at that figure in the following manner. The Commonwealth
asked for restitution of $5,000 based on the trial testimony of
the fire chief about the value of the Duggans’ personal property,
clothing, stereo equipment, furniture and household items
destroyed in the fire. The judge then asked the prosecutor about
the accuracy of the fire department estimate. She responded,
"They say it is pretty accurate but it is hard to be precise
about it." In asking defense counsel for his sentencing
recommendation, the judge asked, "What restitution are you
suggesting is reasonable?" Defense counsel said the amount
of restitution should be based on the defendant’s job,
"somewhere in the range of $2,000," paid over the
course of her probation. The judge rejected both recommendations
and ordered restitution of $2,500. There was no objection to the
conduct of the hearing or the amount of restitution.

Relying on Commonwealth v. Nawn,
394 Mass. 1 (1985), the defendant argues on appeal that the
hearing was fundamentally unfair. She claims there should have
been an evidentiary hearing as to the value of the lost property
with an opportunity for cross-examination. She also claims that
the judge should have considered her financial circumstances in
setting the amount of restitution.

Nawn is readily distinguishable. First,
in that case defense counsel objected to the restitution order. Id.
at 6. Here, not only did the defendant not object or request an
evidentiary hearing, she made her own recommendation for an
amount. Second, in Nawn it was the victim who estimated
the amount of her own loss. Ibid. Here it was the fire
department, which had no personal stake in the amount. Moreover,
"the defendant and [her] lawyer [did] participate in the
restitution decision." Id. at 7. The restitution the
judge ordered was one-half of what the Commonwealth had asked for
and only twenty-five percent more than the defendant suggested.
Even though the hearing did not strictly comply with Nawn,
the process was not fundamentally unfair. See Commonwealth
v. Casserly, 23 Mass. App. Ct. 947, 947 (1986). (We reject
as without merit the Commonwealth’s argument that the defendant
had an opportunity to cross-examine the fire chief at the trial.
A defendant, especially one whose defense is alibi, should not be
expected to try issues of restitution during the trial on the
merits.)

Finally, contrary to the defendant’s argument,
the probation department does have discretion to "consider
the defendant’s financial resources in setting the [restitution]
payment schedule." The order as entered on the docket reads
as follows: "Restitution in the amount of $2,500 payable at
a rate to be determined by [the] Probation [Department]."

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